- In the Criminal Code legislation exists that is designed to address unauthorized access to online accounts like Netflix and HBO
- Section 342.1 of the Criminal Code:
- This section states that “everyone who, fraudulently and without colour of right” obtains “directly or indirectly, any computer service” can be subject to criminal charges.
- And also anyone who “uses, possesses, traffics in or permits another person to have access to a computer password that would enable a person to commit an offence under paragraph (a), (b)”
- It follows that anyone who shares their password and also anyone who uses the shared password would be subject to the criminal offence charge of unauthorized use of a computer.
Section 342.1 of the Criminal Code:
Unauthorized use of computer
342.1 (1) Everyone is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years, or is guilty of an offence punishable on summary conviction who, fraudulently and without colour of right,
(a) obtains, directly or indirectly, any computer service;
(b) by means of an electro-magnetic, acoustic, mechanical or other device, intercepts or causes to be intercepted, directly or indirectly, any function of a computer system;
(c) uses or causes to be used, directly or indirectly, a computer system with intent to commit an offence under paragraph (a) or (b) or under section 430 in relation to computer data or a computer system; or
(d) uses, possesses, traffics in or permits another person to have access to a computer password that would enable a person to commit an offence under paragraph (a), (b) or (c).
(2) In this section,
computer data means representations, including signs, signals or symbols, that are in a form suitable for processing in a computer system; (données informatiques)
computer password means any computer data by which a computer service or computer system is capable of being obtained or used; (mot de passe)
computer program means computer data representing instructions or statements that, when executed in a computer system, causes the computer system to perform a function; (programme d’ordinateur)
computer service includes data processing and the storage or retrieval of computer data; (service d’ordinateur)
computer system means a device that, or a group of interconnected or related devices one or more of which,
(a) contains computer programs or other computer data, and
(b) by means of computer programs,
(i) performs logic and control, and
(ii) may perform any other function; (ordinateur)
data[Repealed, 2014, c. 31, s. 16]
electro-magnetic, acoustic, mechanical or other device means any device or apparatus that is used or is capable of being used to intercept any function of a computer system, but does not include a hearing aid used to correct subnormal hearing of the user to not better than normal hearing; (dispositif électromagnétique, acoustique, mécanique ou autre)
function includes logic, control, arithmetic, deletion, storage and retrieval and communication or telecommunication to, from or within a computer system; (fonction)
intercept includes listen to or record a function of a computer system, or acquire the substance, meaning or purport thereof; (intercepter)
traffic means, in respect of a computer password, to sell, export from or import into Canada, distribute or deal with in any other way. (trafic)
- While it is technically true that sharing someone’s Netlflix password would make someone subject to criminal charges under section 342.1 this provision has typically been reserved for more serious hacking cases or security breaches.
- No one has ever been charged under this section for sharing their Netflix password
- The Crown decides whether or not to pursue a case against an accused, if it is in the public interest.
- In this kind of a low level case the Crown would be unlikely to use its resources to bring about criminal charge
- While Netflix says access to its service is “non-transferable” and “the Account Owner should not reveal the password to anyone.” It has no comment on whether or not criminal charges are an appropriate action against violators.
- HBO has also said it won’t go after customers who share their passwords for their streaming service, HBO GO.
- While this criminal copyright provision exists in the Criminal Code it is not widely used and it is highly unlikely that it would ever be applied in this kind of context
- If you have been charged with a criminal offence contact Kostman and Pyzer, Barristers for legal advice.